In conversation with Jakub Jaraczewski: The European Commission’s latest action against Poland and Hungary

In this latest RevDem Rule of Law podcast, Oliver Garner speaks to Jakub Jaraczewski about the European Commission’s latest actions to defend the EU’s values against backsliding Member States.

Jakub Jaraczewski is a Research Coordinator at Democracy Reporting International, a Berlin based NGO, and one of the coordinators of the “re:constitution” programme.

Oliver Garner: On 15 February, the European Commission announced that it was referring Poland to the Court of Justice of the European Union for violations of EU law by the Polish Constitutional Tribunal. Nearly eight years after the initial changes to the tribunal’s composition, why do you think the European Commission is acting now?

Jakub Jaraczewski: Let’s have a quick recap of the story of the Polish Constitutional Tribunal. Following the elections in 2015 and the parliamentary majority for the PiS party, the process of a series of changes to the Constitutional Tribunal began. First came the new judicial appointments to the Tribunal which are done by the Polish Parliament. Through its parliamentary majority, PiS appointed new judges, including three appointments which pretty much overrode the previous appointments made by the previous Parliament in a way which was ultimately found by the European Court of Human Rights in the Case of Xero Flor to be unlawful and incompatible with Polish law at the time. But besides those three new appointments, there were new, and fully proper judicial appointments to the Tribunal. Then a new president was appointed and the Tribunal began to gradually change. Unfortunately, it changed for the worst –  it began to display a manifest lack of independence and it began to act in a way which could not be described in any manner other than being overtly friendly to the ruling coalition and the government.

The first reaction from the European Commission to the Polish Rule of Law crisis in general, not just including the Constitutional Tribunal, but also with regards to other elements, was to initiate a political dialogue with the Polish government. For the first couple of years, the Commission attempted to discuss and negotiate and have a good faith dialogue with the Polish side. But, unfortunately, this was not met with any goodwill from the Polish government and the ruling party who have pretty much used this time to stall and to continue the changes to the Polish judiciary and legal system. The Commission was still hoping that it would be able to achieve some sort of a soft negotiated outcome, but that didn’t work.

Following the phase of the political dialogue, we saw a major change and a shift from both the Polish government and the European Commission starting in 2020. In the context of the Constitutional Tribunal, I would say that the crucial moment was the year 2021 when the Tribunal passed several judgments which were a frontal attack on EU law and on the authority of the Court of Justice of the European Union. The biggest and the most important of those was the judgment in the case K 3/21 on 7 October 2021. The Polish Constitutional Tribunal basically said that the principle of primacy of EU law does not apply partially in Poland as it is incompatible with the Polish Constitution when it comes to issues related to the judiciary, because in the background of all of this were the other parts of the Polish Rule of Law crisis with the courts being taken over, the Supreme Court story, the Disciplinary Chamber, and so on.The Polish Constitutional Tribunal basically said that, in those areas, EU law does not come first before the Polish law. This was an illegal earthquake and prompted very strong reactions, including from the European Commission, which started to change its approach to the problem. As part of its shift in approach to the Constitutional Tribunal in December 2021 it initiated an infringement procedure which took over a year. We have now arrived at the point where the Commission has brought Poland before the Court of Justice of the European Union over the status and activities of the Constitutional Tribunal.

Now, why did it take so long? Well, first of all, the Commission has been desperately trying to resolve this crisis in a legally peaceful way, by negotiating and discussing and talking to the Polish government. But since there was no good faith at all from the beginning from the Polish side, this was wasted time.

Only after the European Commission changed his approach, and started using stronger tools including imposing financial pressure on Poland, did we see some kind of improvement and some degree of the Polish government stepping back from some elements of the crisis.

Now, I think that the long wait for the Constitutional Tribunal came first of all from this approach of the European Commission, but also from the fact that it was only in 2021, with those judgments directly attacking EU law and challenging the authority of the Court of Justice, that the Constitutional Tribunal has fully revealed it’s true nature. In the context of EU law, it has provided the Commission with strong grounds to take action.

We can discuss for a long time whether the Commission should have acted earlier with regard to the Constitutional Tribunal. There was already the problem with its independence and composition. But, then again, up until 2021 the Constitutional Tribunal did not really do much about EU law and did not challenge the authority of the Court of Justice.

So my thinking is that the Commission was waiting for a moment and a strong legal ground, and the activities of the Tribunal in 2021 provided the strong legal ground to start an infringement procedure and then ultimately take Poland before the court.

Another recent Rule of Law development and claim to the Court of Justice has seen a Commission infringement action from December make the claim that a Hungarian law imposing prohibitions and restrictions on the promotion of gender identities in the media infringes Article 2 TEU. This appears to be the first direct invocation of an infringement of the values clause in such a claim.

Do you believe that it is relevant that this comes in a case in which substantive individual rights are threatened rather than structural principles such as the Rule of Law that may be more amenable to defensive claims of being protected under Article 4(2) TEU as part of national Constitutional identity?

First of all, I think that the Commission’s actions towards Hungary and basing this case on Article 2 is in fact a watershed moment. I agree with Luke Spieker in his recent piece for EU Law Live when he wrote about how this is a transformative moment with the European Commission shifting its approach which insofar has seen Article 2 hanging somewhere in the background and the legal base for actions towards Member States always being based on some more specific and detailed provisions of the Treaties. Here we have, for the first time, a self-standing claim and argument that the discrimination of LGBT+ people in Hungary is a violation of Article 2. I think that this is a very important moment.

This is also a moment where we can start looking into whether the Commission could apply a similar approach towards other countries, and primarily Poland. Now, I think that in the case of Hungary the situation is really clear as we have discrimination, which is a direct infringement of fundamental rights of people in the country. There is a very strong direct link between Article 2 and what has happened now. The question would be: can you draw a similar direct link in Poland? Here, the answer is a little bit more complex because, on the one hand, the Constitutional Tribunal in Poland is not a regular court. You can appeal there from your regular proceedings. This is more of an extraordinary route of an individual Constitutional complaint, which you can take once you’ve exhausted all the other means and you still think that the law is contrary to the Constitution or a ratified international treaty. So you could say that the condition of the Polish Constitutional Tribunal does not as much directly impact the rights and freedoms of individuals in Poland in the same way as the Hungarian government is doing with LGBT+ rights. But, on the other hand, the Constitutional complaint in Poland is a form of realizing your right to a fair trial. This has already been found by the European Court of Human Rights in the Xero Flor case about one of the judges of the Constitutional Tribunal when it said that the proceedings before the Tribunal are an extension of previous regular court proceedings. So in a case arising from a Constitutional complaint by the individual the right to fair trial applies there as well.

More broadly speaking, one very important link between Article 2 and the Polish Constitutional Tribunal, and also other elements of the Rule of Law crisis, is that the Polish Constitutional Tribunal has a very important role in the system of protecting human rights in Poland.

This occurs not only through individual Constitutional complaints, but also through the abstract control of and review of laws, which can be initiated by a broad array of institutions and bodies: this includes the President of Poland, deputies, the Sejm, the Senate, the Prosecutor General, and the Ombudsman. There is a long list of people and institutions that can take a law before the Constitutional Tribunal. In the past, before the takeover in 2015, the Constitutional Tribunal on multiple occasions struck down laws based on the grounds of those laws leading to a violation of human rights and freedoms, and on multiple occasions it reviewed laws as to their compliance with human rights and freedom protected in the Polish Constitution, but also protected in the European Convention of Human Rights and EU law.

So the condition of this Tribunal is not just an element of protecting individual rights in specific situations of Constitutional complaint, but it’s also a very important part of the whole system of protecting human rights in Poland.

In fact, the condition of the Constitutional Tribunal has become so bad that, at this point, lawyers in Poland advise their clients not to take the cases to the Constitutional Tribunal.

They advise clients not to risk the possibility of unlawfully installed judges ruling in the case, or the government taking some interest in this particular case and using its influence over the Tribunal to achieve an outcome that is more favorable for the government. I would say that all of this builds a strong link that the Commission could possibly use to invoke Article 2 in this case as well. But one more thing which I keep thinking of is a comment by Steve Peers who bluntly said let’s wait to see what the Court of Justice will say about using article 2 as a self-standing ground for infringement claims. We have had mixed signals, to say the least, from the court so far when it comes to invoking Article 2 directly. So I believe that this will be a very important moment. This Hungarian judgment will have extremely important relevance, not just for the LGBT+ community in Hungary and not just limited to Hungary in Poland, but also in all instances when the Member States violate human rights and freedoms or diminish their protection

You mentioned in your answer to the first question the financial pressure that can be applied and is being applied to Poland and Hungary. The other big recent Rule of Law story in Poland has concerned the draft law on the Disciplinary Chamber and the background context of Poland seeking to access EU recovery funds. As that law has just been referred by President Duda to the Constitutional Tribunal,

could the decision by the Tribunal be affected by the Court of Justice’s judgment in the Commission’s infringement action? And could this provide a further impediment down the road to Poland accessing these funds?

I think that in this situation one crucial element is timing. First of all, I believe that the Polish Constitutional Tribunal judgment will come first before a decision by the Court of Justice of the European Union. The CJEU will take its time, duly and correctly, and probably will not tackle this case this year. I expect that perhaps an opinion from the Advocate General could come before Christmas, but I have a strong feeling that the judgment itself will not come until 2024. On the other hand, the Polish Constitutional Tribunal will now attempt to resolve this case and pass its judgment on this law as soon as possible. There is an application from President Duda; I just literally today [Friday 24 February] opened for the first time what has become available. President Duda is claiming that this law is incompatible with the Polish Constitution on multiple counts. So this is one dynamic. The second dynamic is the will of the government and the ruling party who, on this occasion, apparently have diverged from the President because they will want this law to be passed and to be enforced as soon as possible. So they will be interested in the Constitutional Tribunal passing the judgment as soon as possible.

Then there is the third dynamic, which is the rebellion within the Constitutional Tribunal. Currently we have a situation in which  a group of six judges, including the Vice President of the Tribunal Mariusz Muszyński, are apparently aligned with the minor coalition partner in the ruling camp – the party of Prosecutor General, Zbigniew Ziobro. Those six rebels have already openly spoken against the leadership of the Tribunal. They claim that the Tribunal’s President,  Julia Przyłębska, is actually no longer the President of the Tribunal because her term has expired.

There have been multiple public expressions which indicate there is a massive rift within the Tribunal and that people are at each other’s throats there.

So those group of rebels who are aligned with Ziobro, who is against the law and any compromise with the European Union, will probably try to slow down or sabotage the whole process and try to ensure that this law is found to be incompatible with the Constitution or that the decision will not be taken quickly. So this is the massive mess that the Polish situation is now in, with at least three major political players that each have their own agenda and the Constitutional Tribunal torn between them.

What I think will happen is that the Tribunal will aim to find the law compatible with the Constitution, but will be heavily impeded both by the rebels and by the arguments from President Duda. Frankly, the big question that emerges here is should the European Commission pay out Poland’s recovery fund based on Poland fulfilling the Rule of Law milestones by means of enacting a law which was reviewed by the Constitutional Tribunal, which at the same time is subject to an infringement court case from the Commission against Poland? I personally cannot see the Commission easily making a decision to sign off the Polish recovery fund given the current situation because, even if the Polish government comes to them and says “look, this law has been reviewed by the Constitutional Tribunal and it’s all fine”, it is the Constitutional Tribunal that the Commission is claiming lacks independence and is being politically influenced and improperly constructed with unlawfully appointed judges. This is a massive political mess. I’m not a political scientist, so please take this with a grain of salt.

But I think that it would be extremely difficult for the Commission to give the OK to this whole Polish situation and the release of recovery funds if the Polish Constitutional Tribunal now finds the new law to be compatible with the Constitution.

But even getting there will be extremely difficult given the political variables that I spoke about earlier.

We are recording this podcast on the one-year anniversary of Russia’s invasion of Ukraine. We have seen geopolitical commentators recently speculating that Poland could parlay its proactive role during the conflict in supporting Ukraine into a broader leadership role within Europe in the next decades. This could come with a shift of gravity to Eastern Europe in the future with the potential accession of Ukraine. Indeed, we have seen President Biden speak from Warsaw recently, ahead of the one year anniversary of the conflict.

If this shift were to happen despite Poland’s continuing resistance to the EU legal order would this challenge the idea that the EU is still a community based on law? And could this presage a more geopolitical conception of the role of the EU in the next decades?

First of all, I don’t think that I agree with those who say that a major shift in the European Union’s decision making and a major shift from the west to Central and Eastern Europe is coming. I think that ultimately the importance and weight of EU Member States is decided by two primary factors. One is the size of the population and the second is the GDP.

On the one hand, Poland is a relatively big country which is increasingly getting stronger and stronger economically. But on the other hand, it is impeded by the Rule of Law situation. Poland and other Central and Eastern European countries, with the notable exception of Hungary, have been exemplary in supporting Ukraine and in carrying the burden and sharing the hardships that come with opposing Russia. Despite this, I don’t think that a major shift that would diminish the Franco-German friendship and role in the European Union and shift the political weight of the bloc eastwards is going to happen. We will definitely see a change in security thinking. I think that this is long overdue and a very important course correction by the European Union now with the blatantly open view on Russia’s ambitions and the danger it poses.

I think that there will be a far greater role for Central and Eastern European Member States to play in the EU security architecture and ensuring that the EU is safe from Russian aggression.

But I don’t think that a massive paradigm shift is going to happen because, ultimately, the economic and technological weight is with the Western European countries. But countries like Poland definitely can and will improve their standing and importance after the war. But I also believe that the whole idea of being a community based on law has already been challenged for several years by what has been happening in Hungary and Poland.

The legitimacy of the EU as a value-based organization is already heavily undermined by what has been happening in several Member States. Hungary is not a proper democracy anymore. It is a country which has been for all practical purposes captured by one political party and one man at the head of this party. Poland is perhaps not in as bad a situation, with several institutions still being intact such as the Constitution, and with the opposition parties controlling one chamber of the Parliament. Basically the level of damage to the Rule of Law is not as great as it is in Hungary, but it is still in a very problematic place. There were several other EU Member States which still struggle with elements of the Rule of Law: counties like Bulgaria or Romania, Malta and Cyprus in a way, and others which also have small individual problems.

I think that this whole idea of a community based on the Rule of Law is already being challenged and it is up to the EU, and particularly the Commission as the guardian of the Treaties, to step up and to ensure that the situations are being addressed because we only recently saw strong a reaction against what is happening with Poland and Hungary.

We have seen the withholding of recovery funds and cohesion funds, and general economic pressure which seems to be partially working.

This has only been happening recently and it is a good step forward, but it still needs to continue in order to restore fully the authority of the EU as a community based on law.

More broadly, on the role of the EU as a geopolitical actor, I think that the biggest challenge and opportunity is the war in Ukraine and how the EU is reacting to it. I think that so far there is a lot to be proud about in how the EU has reacted in supporting Ukraine and opposing Russia. It has basically placed itself very firmly on the map of this conflict as a player who has immense weight and the means to do this. The EU has employed several laws and policies which were previously, in some cases, not used at all such as the Temporary Protection Directive. So, the test has been mostly passed, but how this all plays out and what happens after the war will be very important to see whether the EU is able to keep up its newly found, or rather rediscovered, geopolitical weight. Part of this is also dealing with internal situations such as the Rule of Law crisis.

You have provided quite a convincing explanation of how the situation in Hungary and Poland would probably bar them from taking a lead on moral issues within the EU. So, for our final question, how do you see the Rule of Law and values crisis between the EU and Hungary and Poland finally being resolved, if it can indeed be resolved? Do you think that it would take the election of new governments in Hungary and Poland? Of course there will be elections in Poland in the autumn. Or do you think that the recent geopolitical shifts and internal developments that we have been discussing in our podcast today mean that a diplomatic solution can be found?

First of all, I think that in both cases of Poland and Hungary a change of parliamentary majority in the government would be necessary for stable improvement to the Rule of Law. The current governments in both countries are backtracking only when faced with financial pressure – doubly so in times when the economic situation in general is bad, and high inflation and the energy crisis are overlapping and making the pressure from the European Union all the more stronger. I do not think that there is much to be done in terms of negotiating with both countries. They have both displayed that they attempt to do as little as possible under pressure, and they have engaged in various smoke and mirrors operations in order to try to present what they call major solutions that are in fact small steps that do not change the bigger picture. There was a lack of goodwill, and ultimately, Mr Orbán and Mr Kaczynski desire to control the judiciary in their countries and they want to remove checks and balances which they see as impeding their rule. I do not think that those sentiments are going anywhere.

So a change in the parliamentary majority could lead to improvement.

But, here again, the situation in Hungary is much worse because a lot of elements of the changes which have been introduced by Fidesz and the Orbán government will be very difficult to reverse.

They have been designed to be very hard to remove, even in a situation where the opposition would form a government. In Poland the situation is slightly better as, with the old Polish Constitution from 1997 still in place, there has been  a limited field for what could be changed and altered within the Polish political and legal system. That means that, if the opposition were to win the election in Poland, they would have some room to maneuver.

In Poland the situation is also made easier by the fact that almost all opposition parties are on the same page when it comes to the Rule of Law, with small divergences. But still the Polish opposition, be it left-wing, centrist, or agrarian, all kind of agree that there has been damage to the Rule of Law, that judges should not be attacked, and that the Constitutional Tribunal has been taken over. They diverge on the details about how to approach and fix those things, but they are broadly on the same page. But even if the Polish opposition manages to form a parliamentary majority after the elections in the autumn, there will still be remaining challenges.

One of the two biggest challenges is that President Andrzej Duda will remain in office until 2025 and he wields the power of legislative veto, which will be very difficult for the opposition to defeat. Even if they manage to win a majority, I doubt that they will be able to have a majority that would be capable of defeating this veto, and so the President will remain a challenge which the opposition would have to overcome in some way.

The second problem, of course, is the Constitutional Tribunal which will remain there for quite some time as the majority of judges have been installed by the parliamentary majority led by PiS. This tribunal will have the power to review laws and the power to strike them down. So this is another challenge that the Polish opposition would have to overcome. There will be major challenges even if the opposition in those countries manages to win the vote and manages to form a government. I think that, especially in the case of Poland, there is some optimism both regarding the current political situations and the ways ahead.

But I also think that both the Polish opposition and the expert community in academia who are looking into the situation in Poland need to start thinking about how exactly to solve those problems and what means to use to overcome the challenge of resistance from President Duda or the Constitutional Tribunal.

This is definitely a situation in which lawyers need to sit down with political scientists and talk about possible scenarios, and ways of solving those problems.

Even if the opposition manages to seize power in Poland, the removal of all the elements of damage that have been done so far could invite a very heavy-handed solution which, in itself, would raise Rule of Law questions.

One can imagine, for example, the Parliament passing a law saying that the judges of the Constitutional Tribunal have been unlawfully appointed, and the whole tribunal is not independent. This situation is laid out in judgments from the European Court of Human Rights and possibly soon from the Court of Justice of the European Union. So the term of certain judges could be extinguished, and the Tribunal reset because it can no longer carry on like this. But this is a very dangerous move that would raise many Rule of Law questions. So there is a lot of to discuss about how exactly to approach the situation. I think that at least some of the elements of the damage that has been done can be rolled back, but it will require very careful movements from both lawyers and politicians.

This transcript has been edited for length and clarity.

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